DR. ARUN KUMAR, SON OF DR. RAMCHANDRA PRASAD SINHA, RESIDENT OF PREMA APARTMENT IN FRONT OF SRI KRISHNA ENCLAVE, NORTH OFFICE PARA, P.O. & P.S. DORANDA, DISTRICT RANCHI Vs. THE STATE OF JHARKHAND THROUGH THE CHIEF SECRETARY, GOVT. OF JHARKHAND PROJECT BHAWAN, P.O. & P.S. DHURWA, DISTRICT

JUDGEMENT

(1.) In the accompanied writ application, initially the petitioner challenged the show-cause notice dated 11th July, 2013 as contained in Annexure-23 issued by the respondent no.3 and for quashing of the inquiry report of the High Level Enquiry Committee vide Notification No.1047 dated 23.03.2013 and further prays for allowing the petitioner to continue on the post of Director, Department of Science and Technology. During the pendency of the writ application, the notification as contained in Memo No.3048 dated 25.10.2013 (Annexure-28) pertaining to removal of the petitioner from the post of Director, Science and Technology and the order dated 23.10.2013 (Annexure-30) at the amended writ petition, which has been challenged by the petitioner by way of filing an interlocutory application which has been allowed by this Court vide order dated 31.01.2014.

(2.) Bereft of unnecessary details, the facts as disclosed in the writ application is that the petitioner was appointed as Lecturer in S.R.E.S. College of Engineering, Kopargaon, District-Ahmadnagar, Maharastra on 17.08.1990, which is an affiliated Engineering College under Pune University. Since, the petitioner possessed the qualification for being appointed as Assistant Professor w.e.f. 09.07.1992 in the said college of engineering and continued as such till 30.09.2000. In pursuance to public advertisement dated 05.06.2000 which was notified in the newspapers by the College of Engineering, Kopargaon, Amhadnagar (Maharashtra) inviting the applications for appointment on the post of Professor in Civil Engineering. Petitioner, being eligible, has applied for the post of professor and after due selection, he was appointed as Professor in Civil Engineering in the said College as is evident from Annexure-1 to the writ application and University of Pune vide letter dated 09.01.2001 granted approval to the appointment of the petitioner as Professor in Civil Engineering w.e.f 01.10.2000 as per Annexure-2 to the writ application. In the meanwhile, the petitioner was awarded Ph.D in Civil Engineering. The Government of Jharkhand vide resolution dated 23.08.2002 prescribed eligibility and requisite qualification for appointment on the post of Director in the Department of Science and Technology. The resolution provided that a person having a Ph.D Degree with First Class Degree in Bachelor or Masters Level in Engineering and having 15 years experience in Teaching/Industry/Research, out of which, 5 years must be at the level of professor shall be held eligible as evident from Annexure-4 to the writ application. The Jharkhand Public Service Commission vide Advertisement No.06/2005, which was published in National Newspapers including the Hindustan Times dated 19.09.2005 inviting applications for appointment for the post of Director under the Department of Science and Technology. There has been two posts of Director i.e. Director, BIT Sindri and Director, Science and Technology wherein the essential qualification is Ph.D Degree in any branch of Science/Engineering/Management and First Class Bachelor Degree or Master Degree in Engineering/Computer Technology as per Annexure-5 to the writ application. The Advertisement was published with the eligibility criteria as prescribed in the resolution dated 23.08.2002. In pursuance to the advertisement, the petitioner applied for the post of Director, Department of Science and Technology within the stipulated time period and the petitioner appeared before the Interview/Selection Board and vide notification dated 23.08.2006, the petitioner upon the recommendation of the Jharkhand Public Service Commission and upon the approval of the Cabinet of the Government was appointed as Director, Department of Science and Technology is evident from Annexure-6 to the writ application. In pursuance to the letter of appointment, the petitioner submitted his joining on the post of Director, Science and Technology under the respondent department on 05.09.2006. After appointment the petitioner discharged his duties with utmost honesty and sincerity. Basing on the frivolous complaints, the respondent Secretary vide letter dated 19.12.2006 wrote to the respondent Secretary of the Public Service Commission to enquire into the matter of eligibility and qualification of the petitioner. In response, the respondent Secretary Public Service Commission vide letter dated 12.02.2007 replied that the petitioner was selected by an Interview Board of Experts who have prepared the panel and if there is any doubt regarding the certificates and the materials submitted by the candidate, the same could be verified. Challenge to the appointment of the petitioner has also been made by one Ram Kishore Singh who filed a writ application being W.P.(S) No.777/2010 with a prayer for issuance of writ in the nature of quo-warranto to enquire into the legality of the appointment of the petitioner as Director, Science and Technology on the ground that the petitioner did not possess the requisite qualification and experience to hold the said post and the said petition was dismissed vide order dated 04.05.2010 and against the order passed by the Honourable Single Judge, L.P.A No.222 of 2010 was preferred by the said writ petitioner and the said LPA also has been dismissed vide order dated 23.08.2010 as per Annexure-12 to the writ application. Thereafter, one writ petition in the nature of Public Interest Litigation i.e. W.P.(PIL) No.3904 of 2011 has been filed by one Girdhari Mahto challenging the appointment of the petitioner and the Division Bench of this Honourable Court vide order dated 09.09.2011, dismissed the Public Interest Litigation as per Annexure-13 to the writ application. Again one Santosh Kumar Jha also filed a writ application in the nature of Public Interest Litigation being W.P. (PIL) No.3551/2012 with a prayer for CBI investigation into the matter of appointment of the petitioner as Director, Department of Science and Technology and the PIL has been dismissed vide order dated 30.10.2012. Again one Kalicharan Rawani filed a writ application being W.P.(S) No.634 of 2012 with the prayer for issuance of a writ in nature of quo-warranto against the petitioner from holding the Office of the Director, Department of Science and Technology on the ground of lack of requisite qualification and experience. In the said writ petition, the counter-affidavit has been filed by the respondent department stating therein that the petitioner was respondent no.6 in the writ application, satisfied with the eligibility criteria as prescribed in the Advertisement and the correspondences of the Pune University to the appointment of the petitioner as professor was in consonance with the law and rules and since there was no mandatory requirement of the Ph.D by the University as prescribed by the U.G.C. It has been stated that in the writ application there had been no mandatory requirement of Ph.D at the relevant point of time for being appointed or promoted as Professor. It has also been demonstrated in the writ application that several persons have been appointed as Professors on the basis of their M.Sc. Engineering/M. Tech. Degree from the downloaded profile of the professors at NIT Rourkela as is evident from Annexure-19 to the writ application. Therefore, the petitioner possessed the qualification for being appointed as a professor in the year 2000 and had the experience of five years as required on the date of filing of an application and had been eligible in all aspects for being appointed as a Director, Department of Science and Technology and the subject matter of qualification and experience of the petitioner thoroughly enquired by the respondent department. In the aforesaid back drop, the entire issue relating to the qualification, experience and appointment of the petitioner was given quietus. The respondent department vide notification dated 23.03.2013 directed for another enquiry by a High Power Committee on the appointment of the petitioner as per Annexure-20 to the writ application and the petitioner was directed to submit evidences before the High power Committee in relation to the advertisement issued by the JPSC and the experience certificate by the Pune University. But the High Power Committee had proceeded at the back of the petitioner and submitted a report basing on the impugned show cause dated 11.07.2013 has been issued to the petitioner as to why the services which has not been confirmed yet and is on extension of probation be not terminated as evident from Annexure-23 to the writ application and the petitioner vide letter dated 17.08.2013 replied to the show cause notice explaining in detail his qualifications and eligibility for being appointed as Director, Science and Technology but the additional Chief Secretary Science and Technology proceeded on the basis of ex-parte report of the enquiry committee headed by the Development Commissioner, recommended for dispensing the services of the petitioner vide order dated 23.10.2013 (Annexure-30 to the amended writ petition). Accordingly, vide notification dated 25.10.2013 the petitioner was dismissed from services. Being aggrieved and dissatisfied with the impugned order dated 23.10.2013 Annexure-30, and notification dated 25.10.2013 the petitioner, left with no other alternative efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Art. 226 of the Constitution of India for redressal of his grievances.

(3.) Per-contra a counter-affidavit has been filed on behalf of the respondent nos. 1, 2, 3 and 5 controverting the averments made in the writ application. In the counter-affidavit, it has been submitted that the State of Jharkhand decided to fill up the post of the Director, Department of Science & Technology and accordingly memorandum for consideration before the council of Ministers has been placed as evident from Annexure-A to the counter-affidavit and as per the said memorandum the Government proposed to fill up the post of Director, Department of Science & Technology, Government of Jharkhand from among the Director, Principal, Professor who were already serving Government Engineering Colleges and Polytechnics. As per the eligibility criteria for filling of the post of Director, Department of Science & Technology, the candidate must be Ph.D. Degree holder, first class Bachelor and Master in engineering and technology, in addition to, the candidate must have the minimum experience for filling of the post of Director. Further, the candidate was required to possess 15 years of experience in teaching and industry, research out of which 5 years experience must be at the level of professor/principal in engineering & technology colleges. The second criteria of the candidate who could make an application for the post of Director could be candidates from Semi Government/Industry/Government Undertaking, State Government/Central Government. After the approval of the Councils of Ministers a Resolution vide memo No.1218 dated 23.08.2002 was issued by the State of Jharkhand, Department of Science & Technology wherein the Jharkhand Public Service Commission was requested to publish an advertisement inviting an application for the post of Director, Science & Technology. The requisition was sent to the JPSC, it made certain objections and finally the State Government vide letter dated 16.08.2005 sent the requisition after compliance of the objection raised by the JPSC as per Annexure-B to the counter-affidavit. But for the reasons best known to JPSC, after having changed the eligibility criteria JPSC published the said advertisement vide advertisement no.06/2005 as per Annexure-C to the counter-affidavit. From the perusal of the advertisement, it shall appear that the said advertisement did not restrict to Director/Principal/ Professor of Government Engineering Colleges and Polytechnic, rather it made it open to all candidates having Ph. D degree of any branch of Science/Engineering/Management with 15 years of experience out of which 5 years must be a at level of Professor or in Computer Engineering/Computer Technology. As per the requisition sent by the Department of Science & Technology, the petitioner was ineligible for the appointment, since he was not serving on the post of Director, Principal, Professor in Government Engineering Colleges and Polytechnics. It has further been submitted that the State of Jharkhand, Department of Science & Technology vide letter dated 02.06.2003 has adopted the terms and conditions of AICTE and as per the requirement of AICTE, the candidate applying for the post of Director must have worked as Professor for a period of 5 years and a candidate who is Professor can only be permitted, and if he had completed the Ph.D degree. In the instant case, the petitioner has submitted his thesis in Oct., 2002 and he was awarded Ph.D degree in March, 2003, thus on the date of making of an application, the petitioner had the experience of having acquired Ph.D degree for a period of 2 years 8 months and some days. Since, the candidate had required an experience of 5 years as Professor as per eligibility for the post of Director, the petitioner was ineligible on the date of making an application for the said post. Since the Department of Science & Technology realized that petitioner did not have the minimum eligibility criteria as provided in the Memorandum approved by the Council of Ministers, it made an objection and wrote to the JPSC vide letter dated 19.12.2006 requesting it to make it clear as to whether the petitioner fulfilled the eligibility criteria for the appointment of the post of Director in the Department of Science & Technology as per Annexure-D to the counter-affidavit. In response to the said letter, JPSC replied vide letter dated 12.02.2007 by which JPSC justified the process of appointment and it further allowed liberty to the department to examine the educational qualification of the petitioner in order to satisfy itself that the petitioner fulfilled the provisions of AICTE as per Annexure-E to the counter-affidavit. In terms of the liberty allowed by the JPSC, the Department of Science & Technology initiated a process for conducting an enquiry and to find out as whether the petitioner fulfilled the eligibility criteria or not. In course of conduct of such enquiry, the then Chief Secretary has given his opinion to this effect that file may be closed. However, the Honourable Chief Minister did not agree with the opinion of the Chief Secretary and made a query as to whether the appointment of the petitioner was in compliance with the requirement of AICTE. His Excellency, the Governor of Jharkhand approved to the noting of the Honourable Chief Minister and in terms of permission so granted by the Governor of Jharkhand and High Power Committee was constituted to enquire into issue of legality of the appointment of the petitioner on the post of Director. The High Power Committee was constituted vide memo dated 23.03.2013 (Annexure-20 of the writ application). The constituted High Power Committee submitted its report vide letter dated 12.06.2013 holding therein that the appointment of person on the basis of altered terms and conditions could not be upheld since the power to change any requirement vested with the Council of Ministers. As on that basis, the appointment of the petitioner is held to be illegal and irregular as per the inquiry report vide Annexure-F to the counter-affidavit and the show cause which is impugned in the writ application has been issued in pursuance of the report of the High Power Committee and the copy of the enquiry report was already furnished to the petitioner. It has further been submitted that the functioning of the petitioner was not upto mark and it was therefore, probation period of the petitioner was extended. In fact, the petitioner filed a writ petition before this Honourable Court being W.P.(S) No.6326 of 2007, wherein the State Government had filed a counter-affidavit stating therein that functioning of the petitioner was not proper and out of the nine projects assigned to him none has been completed successfully. It has further been mentioned that the writ application being W.P.(S) No.6326 of 2007 which was filed by the petitioner to declare him to be confirmed in service was subsequently withdrawn by the petitioner as per Annexure-H to the counter-affidavit. It has further been submitted that in the counter-affidavit filed on behalf of the State being W.P. (PIL) No.3551/2012, the State Government had only made statement that the issue did not involve any extent of public interest. But no effort was made by the State Government to justify the appointment of the petitioner so far as W.P. (S) No.634/2012 is concerned and in the counter-affidavit filed by the State Government, no statement has been made to justify the appointment of the petitioner.